Litigation Divorce Process

Litigation is the process of resolving legal disputes related to the dissolution of a marriage through the court system. In this traditional approach, parties rely on legal representation and judicial intervention to address issues such as property division, child custody, other parenting matters, child support, and spousal support. Litigation follows a structured legal process involving formal pleadings, evidence presentation, legal arguments, and ultimately, a decision by a judge.  It is often the most costly and adversarial of the process options because it revolves around each side arguing their positions and a Judge or other officer who makes decisions for them. While compromises and settlements may occur along the way, they often occur after the Judge provides some decisions or there is a sense of where things may be headed. Essentially, settlement in litigation often happens in the "shadow of the courthouse." Judges often encourage settlement in the hope of preserving court resources and finding more mutually acceptable resolutions.

Litigation entails various filings, disclosure of information, motions requesting certain outcomes and hearings in court. The process of litigation is clearly defined in the rules and regulations for your jurisdiction but the high-level process is fairly uniform:

Basic Steps of Litigation‍

1. ‍Filing of Petition: The divorce process typically begins with one spouse, known as the petitioner, filing a petition for divorce with the appropriate court. The petition outlines the grounds for divorce and the relief sought, such as property division, child custody, and support. The petition needs to be provided to the other spouse notifying them of the divorce. This is sometimes referred as "serving papers" and there are different ways to do that.
2. Response and Counterclaim: The other spouse, known as the respondent, has the opportunity to respond to the petition, either admitting or denying its allegations and asserting any counterclaims or defenses.
3. Discovery: Discovery is the process through which parties exchange information and evidence relevant to the divorce, including financial documents, property valuations, and other relevant materials. Discovery methods may include requests for documents, interrogatories, depositions, and subpoenas.
4. ‍Pretrial Proceedings: Prior to trial, parties may engage in various pretrial proceedings, such as motions hearings, settlement conferences, and mediation sessions, aimed at resolving disputes and narrowing issues for trial.
5. Trial: If parties are unable to reach agreements on key issues through negotiation or mediation, the case proceeds to trial, where a judge hears evidence, considers arguments from both sides, and issues a final judgment resolving the disputed issues.
6. Appeals: In some cases, parties may have the option to appeal the trial court's decision to a higher court if they believe legal errors were made or if they disagree     with the outcome.

Pros of Litigation

• Legal Protection: Litigation provides parties with legal protection and due process, ensuring that their rights are safeguarded under the law and that decisions are made in accordance with applicable legal standards.
• Court Intervention: In cases of high conflict or complex legal issues, court intervention can be beneficial in resolving disputes and providing guidance on matters such as property division, child custody, and support.
• Enforceability: Court orders issued through the litigation process are legally binding and enforceable, providing parties with a mechanism to compel compliance and address violations. While other processes provide binding and enforceable agreements, litigated orders are often seen as the clearest path since the judge/court making the original order then enforces the terms.
• Adjudication of Disputes: Litigation allows parties to present evidence and arguments to a judge who will make decisions based on applicable legal standards and principles, providing a structured and formalized process for resolving disputes.

Cons of Litigation

• Costs and Expenses: Litigation can be expensive, involving attorney fees, court costs, expert witness fees, and other associated expenses, which can quickly accumulate, especially in protracted cases.
• Time-Consuming: Litigation can be time-consuming, with court schedules, procedural requirements, and delays prolonging the process and increasing stress and frustration for parties.
• Loss of Control: In litigation, parties relinquish control over the outcome of their case to a judge who may make decisions that do not fully align with their preferences or priorities. The effort to win may result in both parties losing.
• Emotional Toll: Litigation can be emotionally draining and adversarial, exacerbating conflict and straining relationships between parties, particularly when children are involved.

In summary, while litigation provides parties with a formalized process for resolving disputes through the court system, it comes with significant costs, time commitments, and emotional tolls. Individuals considering litigation for divorce should carefully weigh the pros and cons and consider alternative dispute resolution methods that may offer a more collaborative and less adversarial approach to resolving their differences. It is highly advised to obtain legal advice and proceed in litigation with representation.